Rocket Mortgage, LLC v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2203001989376
Complainant is Rocket Mortgage, LLC (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <rociketmortgage.com>, <rocketmkortgage.com>, <rocketmofrtgage.com>, <rocketmortgagwe.com>, and <rockmetmortgage.com> (the “disputed domain names), registered with GoDaddy.com, LLC (the “Registrar”).
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Lynda M. Braun as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 23, 2022; the Forum received payment on March 23, 2022.
On March 24, 2022, the Registrar confirmed by e-mail to the Forum that the <rociketmortgage.com>, <rocketmkortgage.com>, <rocketmofrtgage.com>, <rocketmortgagwe.com>, and <rockmetmortgage.com> disputed domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. The Registrar has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On March 28, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 18, 2022 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@rociketmortgage.com, postmaster@rocketmkortgage.com, postmaster@rocketmofrtgage.com, postmaster@rocketmortgagwe.com, postmaster@rockmetmortgage.com. Also on March 28, 2022, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On April 25, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Lynda M. Braun as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the disputed domain names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceeding, Complainant has alleged that the entities which control the disputed domain names are effectively controlled by the same person and/or entity, which are operating under several aliases. Paragraph 3(c) of the Rules provides that, as here, a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” In addition, other similarities between the disputed domain names and registrants exist that support consolidation of the Respondents. For instance, the WhoIs records and registrant information for the disputed domain names are the same, all registrants use the name Carolina Rodrigues and the same address in Panama, each disputed domain name uses the same registrar and resolves to a parked page with pay-per-click hyperlinks, and all of the disputed domain names use the entirety of the trademark, albeit misspelled, adding a single additional letter, followed by the generic Top-Level Domain (“gTLD”) “.com”.
Thus, the Panel concludes that the registrants are one and the same, that the disputed domain names are effectively controlled by the same individual or entity, and that consolidation of the Respondents would be fair and equitable. See, e.g., Snap Inc. v. ALI ALSHUMRANI / ALI ALERYANI, FA1805001788602 (Forum June 14, 2018) (consolidating respondents where the websites for the disputed domains were under common control, had substantially similar content and linked to a common website at a disputed domain, and the domain names, hosting information, and registrar information had overlapping characteristics).
Therefore, the Panel finds that the multiple Respondents should be consolidated, and accordingly, the Respondents will hereinafter collectively be referred to as the “Respondent.”
A. Complainant
Complainant, a Michigan corporation, is a well-known provider of lending services and is considered the largest mortgage lender in the United States.
Complainant claims rights in the ROCKET MORTGAGE trademark through its registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., United States Reg. No. 5,013,488, registered on August 2, 2016). Complainant also owns numerous ROCKET-formative and composite marks. The foregoing trademarks will hereinafter collectively be referred to as “the ROCKET MORTGAGE Mark”.
Complainant also contends that Respondent’s <rociketmortgage.com>, <rocketmkortgage.com>, <rocketmofrtgage.com>, <rocketmortgagwe.com>, and <rockmetmortgage.com> disputed domain names are identical or confusingly similar to the trademark as they incorporate slightly misspelled versions of the mark and add the “.com” gTLD.
Complainant uses the domain names <rocketmortgage.com> and <rocketloans.com> in connection with its lending services, which domain names resolve to its official websites at “www.rocketmortgage.com” and “www.rocketloans.com”.
Further, Complainant contends that Respondent lacks rights and legitimate interests in the disputed domain names and that Respondent registered and is using the disputed domain names in bad faith.
The disputed domain names were registered on June 4, 2021, long after the ROCKET MORTGAGE Mark became well known in the United States. The disputed domain names resolve to parked websites with hyperlinked pay-per-click advertisements, through which Respondent presumably receives clickthrough revenue. Moreover, the disputed domain names also are currently being offered for sale online through Sedo.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that Complainant has rights in the ROCKET MORTGAGE Mark based on its trademark registrations with the USPTO. Registration with the USPTO is sufficient to establish rights in a mark pursuant to Policy ¶ 4(a)(i). In addition, the Panel finds that the disputed domain names are confusingly similar to Complainant’s ROCKET MORTGAGE Mark, that Respondent lacks rights or legitimate interests in the disputed domain names, and that Respondent registered and is using the disputed domain names in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that thes disputed domain name should be cancelled or transferred:
(1) the disputed domain names registered by Respondent are identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(3) the disputed domain names have been registered and are being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Panel finds that the disputed domain names are confusingly similar to the ROCKET MORTGAGE Mark as set forth below.
The Panel finds that Complainant has rights in the ROCKET MORTGAGE Mark based on its registrations with the USPTO. Registration with the USPTO is sufficient to establish rights in a trademark pursuant to Policy ¶4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Here, the disputed domain names consist of a misspelling[i] of the ROCKET MORTGAGE Mark. The disputed domain names incorporate the ROCKET MORTGAGE Mark in its entirety, merely adding the additional letters “i”, “k”, “f”, “w” or “m”, respectively, in order to take advantage of typing or spelling errors made by Internet users in entering domain names into their web browsers when seeking Complainant’s website. Further, the misspelled disputed domain names are followed by the gTLD “.com“. Registration of a domain name that merely adds a single additional letter to the trademark does not distinguish the disputed domain name from the mark per Policy ¶ 4(a)(i). See Staples, Inc. v. Whois Privacy Shield Services, FA 1617690 (Forum June 5, 2015) (changing a single letter is a minor enough change to support a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the addition of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Respondent misspells Complainant’s ROCKET MORTGAGE Mark by adding letters to the word “mortgage” to create the misspelled terms in the disputed domain names. Therefore, the Panel concludes that the disputed domain names are confusingly similar to the ROCKET MORTGAGE Mark.
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been established by Complainant.
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain names. Under the Policy, Complainant is required to make out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain names. Once such a prima facie case is made, Respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain names. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
In this case, Respondent did not carry its burden to come forward with evidence of its rights or legitimate interests in the disputed domain names as it did not submit a response to the Complaint, but given the facts of this case, the Panel finds that Respondent would have been hard pressed to furnish availing arguments had it chosen to respond.
In support, the Panel finds that Respondent is not commonly known by the disputed domain names or any name similar to them, nor has Complainant authorized or licensed Respondent to use its ROCKET MORTAGE Mark in the disputed domain names.
In addition, Respondent does not use the disputed domain names for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use because the resolving website has third party sponsored pay-per-click links that list competing services. Using a disputed domain name to resolve to a page with pay-per-click competing links does not constitute a bona fide offering of goods and services or legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) and (iii). Panels have found that using a well-known trademark to lead consumers who are searching for a particular business to a site that lists competing services provided by third parties, is not a bona fide use. See Lockheed Martin Corporation v. Kevin Peter Jones / SakeStyle Media Group, FA 1929877 (Forum Mar. 10, 2021) (“Respondent’s pay-per-click use is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy.”). In the present proceeding, the Panel finds that the use of pay-per-click third party sponsored links does not constitute a bona fide offering or a legitimate noncommercial or fair use of the disputed domain names.
Further, the combination of confusingly similar domain names and an offer for sale of the disputed domain names shows Respondent’s lack of legitimate interests. See Airbnb, Inc. v. xiechunfu, FA1802001770765 (Forum Mar. 7, 2018) (“Offering a confusingly similar domain name for sale to the public suggests a lack of rights and legitimate interests under Policy ¶ 4(a)(ii). Such use shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Morgan Stanley v. Domain Admin / Whois Privacy Corp., FA1804001783121 (Forum June 1, 2018) (“Offering a confusingly similar domain name for sale to the public is evidence of a lack of a bona fide offering of goods or services or a legitimate noncommercial or fair use.”)
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established by Complainant.
This Panel finds that, based on the record, the Complainant has demonstrated the existence of Respondent’s bad faith registration and use pursuant to paragraph 4(b)(iv) of the Policy as described below.
First, the use of a disputed domain name to intentionally attempt to attract Internet users to a respondent’s website or online location by creating a likelihood of confusion or a false association with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of the registrant’s website or online location demonstrates registration and use in bad faith. See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006).
Second, Respondent registered and is using the disputed domain names in bad faith as Respondent engaged in typosquatting. See Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sept. 7, 2018) (“Typosquatting itself is evidence of relevant bad faith registration and use.”). Here, Respondent engaged in typosquatting by adding the letters “i”, “k”, “f”, “w” or “m”, to the ROCKET MORTGAGE Mark in each disputed domain name, respectively. Therefore, the Panel finds that Respondent registered and is using the disputed domain names in bad faith per Policy ¶ 4(a)(iii).
Third, the fame of the ROCKET MORTGAGE Mark, which was used and registered by Complainant far in advance of Respondent’s registration of the disputed domain names, renders it wholly implausible that Respondent created the disputed domain names independently. Moreover, where a disputed domain name is so obviously connected with a well-known name, product or service, its use by someone with no connection to the name, product or service indicates opportunistic bad faith. Therefore, the Panel concludes that Respondent had actual knowledge of Complainant’s rights in the ROCKET MORTGAGE Mark, and this constitutes bad faith under Policy ¶ 4(a)(iii). It therefore strains credulity to believe that Respondent had not known of the Complainant or its ROCKET MORTGAGE Mark when registering the disputed domain names. Thus, as here, prior knowledge of a complainant’s trademarks before registering a confusingly similar domain name is sufficient to find bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (finding actual knowledge due to the domain name chosen and the use made of it).
Fourth, the Panel concludes that Respondent registered and is using the disputed domain names for bad faith disruption of Complainant’s business for commercial gain. Under Policy ¶¶ 4(b)(iii) and (iv), using a disputed domain name to host parked, pay-per-click competing links is generally considered evidence of bad faith disruption for commercial gain. See Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018) (“Respondent's use of the domain name to link to competitors of Complainant, presumably generating pay-per-click or referral fees for Respondent, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv).”).
Fifth, the Panel agrees with Complainant that Respondent registered and is using the disputed domain names in bad faith by offering them for sale for a minimum of USD 899, that is, in excess of the out-of-pocket costs paid. Under Policy 4(a)(i), offering domain names for sale in excess of out-of-pocket costs may be demonstrative of bad faith where a panel finds that the domain names were registered with the intent to sell them. See Retail Royalty Company and AE Direct Co LLC v. Whois Foundation / DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM Domain Admin, FA 1821246 (Forum Jan. 13, 2019) (“Respondent lists the disputed domain name for sale for $5,759, which is a price well in excess of out-of-pocket costs. Such an offering can evince bad faith under Policy ¶ 4(b)(i).”). The Panel therefore concludes that the offer for sale of the disputed domain names demonstrates Respondent’s bad faith.
Finally, Respondent has engaged in a longstanding pattern of cybersquatting in registering numerous domains that infringe on the trademarks of brand owners. Such cases demonstrate that Respondent has engaged in an extensive pattern of conduct designed to infringe upon the trademarks of others, indicative of bad faith. Evidence that a respondent previously registered domain names containing third-party trademarks establishes a pattern of cybersquatting, and demonstrates bad faith registration and use. See Liberty Mutual Insurance Company v. Gioacchino Zerbo, FA1299744 (Forum Feb. 3, 2010). The Respondent in this proceeding has been subject to numerous UDRP proceedings in the past. Where a respondent has been subject to multiple past UDRP proceedings, the Panel may find bad faith per Policy ¶ 4(b)(ii).
Here, Complainant has identified hundreds of UDRP decisions, including over 100 Forum decisions, that were successfully brought against Respondent. See, e.g., Laboratory Corporation of America Holdings v. Carolina Rodrigues / Fundacion Comercio Electronico, FA2009001912624 (Forum Oct. 19, 2020) (noting Respondent's “history of bad faith domain name registrations and adverse determinations); Tommy John, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA2001001878688 (Forum Feb. 6, 2020) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings in which panels ordered the transfer of the disputed domain names containing the trademarks of the complainants). The Panel therefore concludes that Respondent’s conduct in this case demonstrates bad faith registration and use.
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been established by Complainant.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <rociketmortgage.com>, <rocketmkortgage.com>, <rocketmofrtgage.com>, <rocketmortgagwe.com>, and <rockmetmortgage.com> disputed domain names be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: May 2, 2022
[i] This misspelling is an example of typosquatting, a situation in which a disputed domain name includes a misspelled term.
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